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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT
BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP)
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT
BILL 2020
GENERAL OUTLINE
1. The Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill)
amends the Australian Security Intelligence Organisation's (ASIO's) compulsory questioning
and surveillance device powers under the Australian Security Intelligence Organisation Act
1979 (ASIO Act). In doing so, the Bill implements the Government's response to the 2018
report by the Parliamentary Joint Committee on Intelligence and Security (the Committee)
into the operation, effectiveness and implications of the ASIO Act's existing compulsory
questioning framework.
2. In 2020, the Committee conducted a review of the Bill. The amendments to the Bill
address recommendations of the Committee in its review by:
requiring a legal practitioner who is appointed as a prescribed authority to be a
Queen's Counsel or Senior Counsel
requiring the Attorney-General to take into account the best interests of the child as a
primary consideration in deciding to issue a minor questioning warrant
providing that the provisions in Division 3 of Part III, as amended by the Bill, will
cease to have effect on 7 September 2025
allowing the Committee to commence a review into the operation, effectiveness and
implications of the new framework by 7 September 2023
clarifying that the making of a public interest disclosure to an authorised internal
recipient under the Public Interest Disclosure Act 2013 is a 'permitted disclosure' for
the purposes of the disclosure offences, and
clarifying that ASIO is prohibited from using a tracking device without an internal
authorisation if the tracking device is to be installed in a public place, and does not
exceed the limits of authority under proposed sections 26J and 26K of the Bill.
3. The amendments to the Bill also make other amendments to clarify the operation of
the Bill by:
amending cross-references
ensuring that Inspector-General of Intelligence and Security (IGIS) officials cannot be
prevented from entering a place where questioning occurs, and can have
communications devices on them, to ensure they can engage in effective oversight
clarifying that, consistent with the existing framework within the ASIO Act, permitted
disclosures under the secrecy offences also include disclosures by a minor to a parent
or guardian, and
ensuring that disclosures to or by IGIS officials exercising powers or performing
functions or duties, are also permitted disclosures to the secrecy provisions.
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FINANCIAL IMPACT STATEMENT
4. The amendments to this Bill will have no impact on Government revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
AMENDMENTS TO THE AUSTRALIAN SECURITY INTELLIGENCE
ORGANISATION AMENDMENT BILL 2020
1. These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments to the Bill
2. The Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill)
amends the Australian Security Intelligence Organisation's (ASIO's) compulsory questioning
and surveillance device powers under the Australian Security Intelligence Organisation Act
1979 (ASIO Act).
3. The amendments:
require a legal practitioner who is appointed as a prescribed authority to be a Queen's
Counsel or Senior Counsel
require the Attorney-General to take into account the best interests of the child as a
primary consideration in deciding to issue a minor questioning warrant
provide that the provisions in Division 3 of Part III, as amended by the Bill, will cease
to have effect on 7 September 2025
allow the Committee to commence a review into the operation, effectiveness and
implications of the new framework by 7 September 2023
clarify that the making of a public interest disclosure to an authorised internal
recipient under the Public Interest Disclosure Act 2013 is a 'permitted disclosure' for
the purposes of the disclosure offences
clarify that ASIO is prohibited from using a tracking device without an internal
authorisation if the tracking device is to be installed in a public place, and does not
exceed the limits of authority under proposed sections 26J and 26K of the Bill
amend incorrect cross-references
ensure that Inspector-General of Intelligence and Security (IGIS) officials cannot be
prevented from entering a place where questioning occurs, and can have
communications devices on them, to ensure they can engage in effective oversight
clarify that, consistent with the existing framework within the ASIO Act, permitted
disclosures under the secrecy offences also include disclosures by a minor to a parent
or guardian, and
ensure that a disclosure for the purpose of an IGIS official exercising a power, or
performing a function or duty, as an IGIS official, is a permitted disclosure for the
purposes of the provisions relating to secrecy of warrants and questioning.
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Human rights implications
4. The amendments engage the following human rights, which were identified in the
Statement of Compatibility in the Explanatory Memorandum to the Bill, as introduced and
read for a second time in the House of Representatives on 13 May 2020:
the right to freedom from torture, cruel, inhuman or degrading treatment or
punishment in Article 7 of the International Covenant on Civil and Political Rights
(ICCPR) and Articles 2 and 16 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT);
the right to humane treatment in detention in Article 10 of the ICCPR;
the right to freedom from arbitrary detention and arrest, and the right to liberty and
security of the person in Article 9 of the ICCPR and the right of the child to liberty
and security of person and the freedom from arbitrary arrest, detention or
imprisonment in Article 37 of the Convention on the Rights of the Child (CRC);
the right to freedom of movement in Article 12 of the ICCPR;
the right to fair trial in Article 14 of the ICCPR and Article 40 of the CRC;
the right to protection against arbitrary and unlawful interferences with one's privacy
or home in Article 17 of the ICCPR and non-interference with privacy in Article 16 of
the CRC;
the right to freedom of expression in Article 19 of the ICCPR and Article 13 of the
CRC;
the right to freedom of association in Article 22 of the ICCPR and Article 15 of the
CRC;
the right of the child to have their best interests as a primary consideration by courts
of law, administrative authorities or legislative bodies in Article 3 of the CRC; and
the right to support in exercising legal capacity for people with disabilities in Article
12(3) of the Convention on the Rights of Persons with Disabilities (CRPD).
Impact of the Government amendments
5. The amendments to the Bill strengthen and clarify existing safeguards, which ensures
that the measures in the Bill do not arbitrarily or unlawfully interfere with the human rights
engaged. The amendments help to ensure that any limitations on human rights are reasonable,
necessary and proportionate to achieve the legitimate national security objectives of the
compulsory questioning framework.
6. In particular, amendments to section 34D of the Bill clarify that IGIS officials cannot
be prevented from entering a place of questioning. This reinforces the important role of the
IGIS in providing real-time oversight of the questioning process. The IGIS ensures that ASIO
executes the questioning warrant lawfully, with propriety and with due regard to human
rights. This includes ensuring ASIO complies with requirements in the Statement of
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Procedures in relation to the health and welfare of people while in custody, conducting
humane and courteous questioning and providing breaks in questioning. These amendments
ensure that limitations to the human rights engaged are reasonable, necessary and
proportionate and are the least rights restrictive.
7. Amendments to the Bill also require the Attorney-General to consider the best
interests of the child as a primary consideration before issuing a questioning warrant in
respect of a person under the age of 18 years. This ensures that questioning warrants are only
issued with respect to children in exceptional circumstances where the Attorney-General
considers there is an overriding security need to question the child and only once the best
interests of the child have been considered.
8. The amendments also strengthen the criteria which must be met for the Attorney-
General to appoint a legal practitioner as a prescribed authority. A legal practitioner may only
be appointed as a prescribed authority if he or she is a Queen's Counsel or Senior Counsel.
This ensures that the independent person who supervises questioning, and ensures that the
questioning is conducted within the confines of the law, has the skills and experience
necessary to properly perform his or her duties. These amendments will ensure that
limitations to the human rights engaged are reasonable, necessary and proportionate.
9. Finally, the amendments bring forward the sunsetting date for the questioning
framework to five years. At that time, the operation and necessity of the questioning
framework may be reviewed by the PJCIS and re-considered by Parliament.
10. The amendments are consistent with Australia's human rights obligations and to the
extent that they limit human rights, those limitations are reasonable, necessary and
proportionate in achieving legitimate objectives.
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NOTES ON AMENDMENTS
Amendment 1 Schedule 1, page 5 (after line 9), after item 9
1. This amendment to subparagraph 34AAA(1)(a)(ix) replaces the reference to "section
34ZB" with "subsection 34CC(5)." This is a technical correction to reflect the repeal of
section 34ZB and its corresponding replacement.
Amendment 2 Schedule 1, item 10, page 15 (line 22), at the end of
paragraph 34AD(1)(c)
2. This amendment inserts new subparagraph 34AD(1)(c)(iv) to add an additional
requirement on legal practitioners who may be appointed as a prescribed authority under
paragraph 34AD(1)(c). The amendment means that a legal practitioner may only be
appointed under paragraph 34AD(1)(c) if they are a Queen's Counsel or a Senior Counsel.
3. The legal practitioner must also meet the requirements in subparagraphs
34AD(1)(c)(i)-(iii), which state that the person must be enrolled as a legal practitioner of a
federal court or Supreme Court of a State or Territory, has practiced for at least 10 years, and
holds a practising certificate under a law of a State or Territory. The amendment ensures that
prescribed authorities have the skills and experience necessary to properly perform their
duties.
Amendment 3 Schedule 1, item 10, page 22 (line 20)
4. This amendment to subsection 34BB(2) inserts the words "as a primary
consideration" after "the person". This ensures that, before issuing a questioning warrant in
respect of a person under the age of 18 years, the Attorney-General is required to consider the
best interests of the child as a primary consideration. The amendment does not prevent the
Attorney-General from considering other relevant matters, such as the gravity of the security
matter or expected value of intelligence from questioning. Rather, the amendment requires
the Attorney-General to give first importance to the best interests of the child but also allows
the Attorney-General to take into account other matters which arise in the circumstances.
Such matters may, in a given case, be given equal (but not paramount) weight.
Amendment 4 Schedule 1, item 10, page 40 (line 14)
5. This amendment to subsection 34D(10) inserts the words "(other than an IGIS
official)" after "a person". This means that a police officer cannot refuse to allow entry to an
IGIS official to a place of questioning. This ensures IGIS officials are able to be present
during questioning and provide oversight over the exercise of powers under a questioning
warrant. It reflects sections 9B and 19A of the Inspector-General of Intelligence and Security
Act 1986, which allow IGIS officials to enter any place of questioning.
Amendment 5 Schedule 1, item 10, page 40 (line 30)
6. This amendment amends the list of exceptions in paragraph 34D(11)(a) by adding a
reference to "an IGIS official." This ensures that the provisions in section 34D of the Bill, as
they relate to the screening of communication devices, do not apply to those devices in the
possession of, or being used lawfully by, an IGIS official.
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7. Consequently, police officers cannot request IGIS officials to undergo an ordinary
search or a frisk search to ascertain whether they are carrying a communication device under
paragraph 34D(2)(c), request IGIS officials to hand over the communication device for
safekeeping while questioning is being conducted under subsection 34D(5), or request IGIS
officials to answer questions about the communication device under subsection34D(9). The
amendment is necessary to ensure IGIS officials can properly perform their oversight role.
Amendment 6 Schedule 1, item 10, page 41 (line 15)
8. This amendment amends the current list in paragraph 34DA(3)(a), by adding a
reference to "an IGIS official." The effect of this amendment is that IGIS officials are exempt
from the general prohibition on possessing a communication device during questioning. The
amendment reinforces the IGIS's role in providing oversight during questioning. In some
circumstances, IGIS officials may require a communication device during questioning to
perform their oversight role.
Amendment 7 Schedule 1, item 10, page 63 (line 26)
9. This amendment to paragraph 34FA(2)(b) replaces the reference to "subparagraph
34FF(7)(c)(i)" with "subparagraph 34FF(7)(c)(iii)." This is a technical correction.
Amendment 8 Schedule 1, item 10, page 85 (after line 14)
1. This amendment inserts new subsection 34GF(3A) to clarify that a person does not
commit an offence for disclosing information under subsections 34GF(1) or (2) if the person
does so under a law of the Commonwealth where he or she is not subject to civil or criminal
liability for the conduct. New "Note 1" clarifies that the Public Interest Disclosure Act 2013
provides that an individual is not subject to any civil or criminal liability for making a public
interest disclosure. New "Note 2" provides that the defendant bears the evidential burden in
relation to matters in subsection 34GF(3A).
Amendment 9 Schedule 1, item 10, page 86 (lines 3 to 12)
2. This amendment to the definition of permitted disclosure in subsection 34GF(5) omits
subparagraph 34GF(5)(a)(iv) which refers to "exercising a power (including a power to make
a complaint or give information), or performing a function or duty, under the Inspector-
General of Intelligence and Security Act 1986, the Ombudsman Act 1976 or Part V of the
Australian Federal Police Act 1979" and subparagraph (v), which refers to "exercising a
power (including a power to make a complaint or give information), or performing a function
or duty, under a law of a State or Territory appointing or establishing a complaints agency."
3. The amendment replaces those subparagraphs with a new subparagraph (iv), which
lists "exercising a power (including a power to make a complaint or to give information), or
performing a function or duty, under Part V of the Australian Federal Police Act 1979, the
Ombudsman Act 1976 or a law of a State or Territory appointing or establishing a complaints
agency".
4. This amendment is consequential to Amendment 10 which inserts new paragraph
34GF(5)(aa) in the definition of permitted disclosure to allow disclosures made to or by an
IGIS official for the purposes of the IGIS official exercising a power, or performing a
function or duty, as an IGIS official.
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Amendment 10 Schedule 1, item 10, page 86 (after line 12)
5. This amendment to the definition of permitted disclosure inserts new subparagraph
34GF(5)(aa), which lists "a disclosure made to or by an IGIS official for the purposes of the
IGIS official exercising a power, or performing a function or duty, as an IGIS official". This
amendment ensures that a person does not commit an offence under subsections 34GF(1) or
(2) for disclosing information about a questioning warrant, or operational information, in the
course of disclosing information to an IGIS official. The amendment also ensures that an
IGIS official does not commit an offence under subsections 34GF(1) or (2) for disclosing
information in the performance of a function or duty as an IGIS official. The amendment also
ensures that the powers, functions and duties of IGIS officials are not limited to those in the
Inspector-General of Intelligence and Security Act 1986.
Amendment 11 Schedule 1, item 10, page 86 (line 30) to page 87 (line 3)
6. This amendment to the definition of permitted disclosure omits paragraph 34GF(5)(f),
which refers to a disclosure by the subject of a minor questioning warrant, or by a minor's
representative to one or more of the following: (i) the subject; (ii) a minor's representative for
the subject; (iii) a sibling of the subject; (iv) a prescribed authority; (v) a person exercising
authority under the warrant; (vi) the IGIS; (vii) the Commonwealth Ombudsman; and (viii) a
complaints agency.
7. The amendment replaces that paragraph with a new paragraph (f) which refers to a
disclosure by the subject of a minor questioning warrant, by a parent, guardian or sibling of
the subject, or by a minor's representative, to one or more of the following persons: (i) the
subject; (ii) a minor's representative for the subject; (iii) a parent, guardian or sibling of the
subject; (iv) a prescribed authority; (v) a person exercising authority under the warrant; (vi)
an IGIS official; (vii) the Commonwealth Ombudsman; and (viii) a complaints agency.
8. The effect of the amendment is that a parent, guardian or sibling of the subject may
disclose information to the persons listed in subparagraphs (i)-(viii) and not commit an
offence under subsections 34GD(1) or (2). The subject of the minor questioning warrant and
the minor's representative may also disclose information to a parent, guardian or sibling
without committing an offence.
Amendment 12 Schedule 1, item 10, page 94 (line 2)
9. This amendment to the sunsetting provision in section 34JF omits the reference to "7
September 2030" and replaces it with "7 September 2025". The effect of this amendment is
that Division 3 of Part III of the ASIO Act will cease to have effect on 7 September 2025.
Amendment 13 Schedule 1, page 100 (after line 16)
10. This item amends the functions of the Committee by inserting new paragraph
29(1)(ce) into the Intelligence Services Act 2001. Paragraph 29(1)(ce) provides a new
function for the Committee; namely, if the Committee resolves to do so, to undertake a
statutory review of the operation, effectiveness and implications of Division 3 of Part III of
the ASIO Act to commence by 7 September 2023.
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Amendment 14 Schedule 2, item 16, page 114 (lines 14 to 19)
11. This amendment omits subsection 33(4) and substitutes it with a new subsection
which provides that nothing in Division 2 of Part III of the ASIO Act makes the use,
installation, maintenance or recovery of a surveillance device lawful if the use, installation,
maintenance or recovery would be prohibited under an applicable law of the Commonwealth,
a State or a Territory (including the common law) unless ASIO does so in accordance with a
warrant, authorisation or the listed provisions in new paragraph 33(4)(c).
12. The purpose of new subsection 33(4) is to ensure that ASIO is not required to obtain a
warrant or internal authorisation under Division 2 of Part III of the ASIO Act in
circumstances where the conduct is not unlawful in the State or Territory in which it takes
place (or under any applicable Commonwealth law or the common law).
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